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700 FAIR EMPLOYMENT ACT AND RELATED STATUTORY BASES FOR FILING COMPLAINTS
702.005 Generally
The Commission lacks the authority to consider claims under Title IX of the Education Amendments Act of 1972. Meredith v. Wis. Pers. Comm., Dane County Circuit Court., 93CV3986, 8/29/94
The Commission was not barred from determining the validity of rules implementing the career executive program in the context of a complaint under the Fair Employment Act alleging discrimination with respect to the decision to reassign a career executive to another vacant career executive position in the same agency. Oriedo v. DOC, 98-0124-PC-ER, 2/2/99
The Commission lacks the authority, under either the Fair Employment Act or the whistleblower law, to enforce the terms of settlement agreements. Where complainant’s charge was clearly focused on the terms of, and the enforcement of, a settlement agreement reached in three previously filed complaints which had been dismissed pursuant to the settlement agreement, the respondent’s motion to dismiss was granted. The Commission also lacked the authority to reopen the previously closed cases, citing Haule v. UW, 85-0166-PC-ER, 8/26/87. Jordan v. DNR, 96-0078-PC-ER, 1/30/97
While it is unlawful for a "person" to discriminate, the Commission's jurisdiction under the Fair Employment Act runs only to the state agency as the employer, pursuant to §111.375(2), Stats., and not to individual agents of the agency in their individual capacities. Reinhold v. DOA et al., 95-0086-PC-ER, 11/14/95
In a claim based on the whistleblower law, a respondent may be a supervisor or appointing authority in his or her individual capacity. Reinhold v. DOA et al., 95-0086-PC-ER, 11/14/95
A stipulation between the Madison Area Technical College and the Madison Equal Opportunities Commission describing MATC as an "agency of the state for purposes of allegations of employment discrimination" is insufficient to create jurisdiction beyond the Commission's statutory grant of authority. Thomas v. Madison Area Technical College, 95-0065-PC-ER, 8/4/95
The question of Worker's Compensation Act exclusivity is an issue of subject matter jurisdiction that can be raised at any time and cannot be waived, citing Powers v. UW-System, 92-0746-PC, 6/25/93. Longdin v. DOC, 93-0026-PC-ER, 7/27/95
The environment of ongoing litigation between the employer and an employe other than complainant does not constitute a "workplace." Martin v. DOC, 94-0103-PC-ER, 12/22/94
A discrimination claim can be based upon an allegation of a discriminatorily hostile or abusive environment. Martin v. DOC, 94-0103-PC-ER, 12/22/94
Harassment, i.e. a hostile work environment, based on handicap falls within the general prohibition against discrimination in the "terms, conditions or privileges of employment" set forth in §111.322, Stats. Stark v. DILHR, 90-0143-PC-ER, 9/9/94
Worker's Compensation Act exclusivity runs to the Commission's subject matter jurisdiction and can be raised at any time. Powers v. UW, 92-0746-PC, 92-0183-PC-ER, 6/25/93
The Commission has no authority over claims filed pursuant to §101.223, Stats., alleging discrimination on the basis of physical condition or developmental disability by post-secondary educational institutions. Fischer-Guex v. UW-Madison, 92-0205-PC-ER, 12/17/92
The Commission's jurisdiction pursuant to the whistleblower law was not ousted by DETF's concurrent administrative jurisdiction to hear challenges to DER's determinations as to whether positions qualify for coverage as protective occupation participants, citing Phillips v. DHSS & DETF, 87-0128-PC-ER, 3/15/89. Pierce & Sheldon v. Wis. Lottery & DER, 91-0136, 0137-PC-ER, 2/21/92
Complainant stated a viable claim upon which relief could be granted where he alleged that his position was eliminated due to his friendship with a second employe who had spurned the sexual advances of a third employe, where the third employe was a superior of the complainant. Christensen v. UW-Stevens Point, 91-0151-PC-ER, 1/24/92
The Commission has the jurisdiction to hear an allegation that the utilization of a rule promulgated by DER, which established minimum and maximum rates of pay upon reinstatement and required the appointing authority to exercise discretion in setting a particular rate within the available spectrum, has a disparate impact on reinstated employes based upon their protected status. However, where the complainant did not advance at least some theory as to how the rule resulted in a disproportionate effect on one or more protected groups with respect to which the complainant had standing, the disparate impact claim was dismissed. The policy of making discretion available cannot be discriminatory under a disparate impact analysis unless and until there is evidence establishing that the discretion has been exercised in a discriminatory manner. Butzlaff v. DER, 91-0043-PC-ER, 8/8/91
In a case involving a claim of handicap discrimination against the Department of Military Affairs with respect to a selection decision for a Security Officer 2 vacancy at an airfield, the Commission denied the respondent's motion to dismiss on the grounds of federal preemption, where the federal regulation cited by respondent for the proposition that the federal government had assumed "exclusive control over the hiring decision" was restricted by its terms to "civilian positions within the Department of Defense." There was nothing in the federal law cited by respondent that was in conflict with either the law enforced by the Commission, which makes it illegal for a state agency to refuse to hire someone simply because of that person's handicap, or the Commission's processing of the subject complaint. The Commission also concluded that the nonselection decision was not "an internal military decision" under Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). Leavitt v. DMA, 88-0094-PC-ER, 12/13/90
The Commission lacks the authority to issue a preliminary injunction with respect to a complaint filed under the Fair Employment Act. Van Rooy v. DILHR & DER, 87-0117-PC, 87-0134-PC-ER, 10/1/87
There is no indication in the statutes that the protections of the Fair Employment Act are limited to state residents, nor even to people who are within the United States. McFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/4/86
The Commission's jurisdiction pursuant to §230.45(l)(b), Stats., over charges of discrimination, is not superseded by the operation of §111.93(3), Stats. Lee & Jackson v. UW-Milw., 81-PC-ER-11,12, 10/6/82
702.01 "Employer"/state agency
In a civil action filed in circuit court under §103.10(13), Wis. Stats., defendant’s motion to dismiss on the basis of sovereign immunity, was denied. The Personnel Commission had previously considered the merits of a FMLA claim by plaintiff relating to the defendant’s decision to terminate his probationary employment. The Commission’s decision had been affirmed on judicial review. Plaintiff’s new action also alleged a violation of the FMLA with respect to the same personnel decision. The plain language of the statute, "an employe or the department may bring an action in circuit court against an employer to recover damages caused by a violation of sub. (11) after the completion of an administrative proceeding, including judicial review, concerning the same violation," is express legislative permission to sue the state. There is no language in §103.10(13) that indicates that an administrative final order finding a violation of §103.10(11) is a prerequisite to filing a civil action. The court allowed the case to proceed. Butzlaff v. Wis. DHFS, Dane County Circuit Court , 97 CV 1319, 9/3/97
The State of Wisconsin is not considered a single employing entity. Wongkit v. UW-Madison, 97-0026-PC-ER, 10/21/98
Complainant was not permitted to amend his whistleblower complaint to include the State of Wisconsin as an additional respondent. There is clear evidence of a legislative intent not to permit the State of Wisconsin to be named a respondent in a complaint of whistleblower retaliation filed with the Commission. Oriedo v. DPI et al., 98-0042-PC-ER, 8/12/98
Respondent’s decision to deny complainant unemployment compensation benefits after her discharge from employment with the University of Wisconsin Hospital Clinics Board related to the regulatory authority of the respondent (Department of Workforce Development) rather than its authority as an employer. The Personnel Commission lacked jurisdiction to review the Fair Employment Act claim arising from the denial of benefits. Mosley v. DWD, 97-0119-PC-ER, 9/24/97
The Commission jurisdiction under the Fair Employment Act is over employment actions by a state agency acting in the capacity of an employer. A state agency that was a defendant in previous litigation in which a garnishment order was obtained and an agency which defended various other agencies in lawsuits filed by complainant did not act in the capacity of an employer within the meaning of the FEA. Balele v. DOA et al., 96-0156-PC-ER, 6/4/97; affirmed by Dane County Circuit Court, Balele v. Wis. Pers. Comm. et al., 97-CV-1927, 2/13/98; affirmed by Court of Appeals, 98-0687, 11/19/98 (unpublished)
The Commission has no jurisdiction to review an employer’s action of implementing garnishment pursuant to a valid court order resulting from litigation in which the employing agency was not a party. Balele v. DOA et al., 96-0156-PC-ER, 6/4/97; affirmed by Dane County Circuit Court, Balele v. Wis. Pers. Comm. et al., 97-CV-1927, 2/13/98; affirmed by Court of Appeals, 98-0687, 11/19/98 (unpublished)
While it is unlawful for a "person" to discriminate, the Commission's jurisdiction under the FEA runs only to the state agency as the employer, and not to individual agents of the agency in their individual capacities. Goetz v. DOA & Columbia County District Attorney, 95-0083-PC-ER, 11/14/95
The Commission's jurisdiction over the employer in Fair Employment Act cases is limited to agencies per se, as opposed to a broader entity such as the State of Wisconsin, citing Pellitteri v. DOR, 90-0112-PC-ER, 9/8/93; affirmed, Pellitteri v. Pers. Comm., 94CV3540, Dane County Cir. Court, 7/19/95 Reinhold v. DOA et al., 95-0086-PC-ER, 11/14/95
Madison Area Technical College, a district technical school authorized under ch. 38, Stats., is not an agency of the state for the purpose of the Fair Employment Act. Thomas v. Madison Area Technical College, 95-0065-PC-ER, 8/4/95
A stipulation between the Madison Area Technical College and the Madison Equal Opportunities Commission describing MATC as an "agency of the state for purposes of allegations of employment discrimination" is insufficient to create jurisdiction beyond the Commission's statutory grant of authority. Thomas v. Madison Area Technical College, 95-0065-PC-ER, 8/4/95
The Lesbian, Gay & Bisexual Campus Center, a registered student organization, is not sufficiently outside the control and governance of the University of Wisconsin-Madison to be considered in legal effect an independent entity such that it would have a capacity as employer independent of the University of Wisconsin-Madison. While the center can independently make decisions regarding its own operation, including the employment of students, such decisions are subject ultimately to the authority of the chancellor and the board of regents. Haselow v. UW-Madison, 94-0171-PC-ER, 6/9/95
Private Industry Councils are created by federal, not state law, so they are not a state agency as defined in the Fair Employment Act. Kemp v. DILHR, 94-0178-PC-ER, 3/2/95
A complaint arising from the action of the respondent that complainant did not possess the requisite qualifications for status as a mental health professional related to the regulatory authority exercised by the state rather than its authority as an employer. Mehler v. DHSS, 94-0114-PC-ER, 12/22/94
The Wisconsin Housing and Economic Development Authority is not a state agency, as defined in §111.32(6)(a), Stats., for purposes of the Fair Employment Act. Conner v. WHEDA, 93-0154-PC-ER, 12/14/94
The Commission lacks jurisdiction to hear a claim of discrimination brought by a student who alleged respondent failed him for a doctoral qualifying exam. Complainant's allegations did not relate to respondent's role as an employer. Hassan v. UW-Madison, 93-0189-PC-ER, 3/29/94
If the constitution or a law creates both an agency and one or more subdivisions within that agency, each such subdivision is not considered a separate, exclusive employer under the FEA. Schilling v. UW-Madison, 90-0064-PC-ER, 90-0248-PC, 11/6/91
The respondent was an employer of the complainant for purposes of the FEA where the complainant was at least nominally a county employe but worked in a program that was a cooperative venture of the county and the respondent and complainant's supervisor, on behalf of the respondent, had and exercised the authority to exert significant control over the incidents of the complainant's employment. The fact that the supervisor did not have final authority to discipline the complainant was not critical. Betz v. UW-Extension, 88-0128-PC-ER, 2/8/91
The fact that the complainant was on the payroll of the county rather than of the respondent was not determinative in deciding whether the respondent was an employer under the FEA. Betz v. UW-Extension, 88-0128-PC-ER, 2/8/91
The status as an employer under the FEA can be based on control over the opportunity for and conditions of employment, and does not require a traditional or common law employment relationship. Novak et al. v. Supreme Court et al., 90-0111-PC-ER, 2/7/91
The Supreme Court was not an "employer" with respect to certain positions filled by the Wisconsin Equal Justice Task Force. Where the complainants had not alleged that the court played any role or exercised any authority with respect to the staffing process, but merely relied on the fact that the WEJTF was in effect created by the Court, there was an insufficient basis for finding the Court held "employer" status in the absence of both a traditional employment relationship and any alleged input into or control over the hiring process by the Court. Novak et al. v. Supreme Court et al., 90-0111-PC-ER, 2/7/91
The Wisconsin Equal Justice Task Force is not a state agency as defined in §111.32(6)(a), Stats. Novak et al. v. Supreme Court et al., 90-0111-PC-ER, 2/7/91
The state is to be considered one employer for the purposes of the family leave/medical leave act. Complainant's employment for two state agencies should, therefore, be considered as work for one employer. Butzlaff v. DHSS, 90-0097-PC-ER, 9/19/90; reversed on other grounds by Dane County Circuit Court, Butzlaff v. Wis. Pers. Comm., 90-CV-4043, 4/23/91; affirmed by Court of Appeals, 166 Wis. 2d 1028, 1/28/92
Respondent was not acting "as an employer" but merely acted as a conduit for federal funding which ultimately found its way to the organization which had employed the complainant. Therefore, the complaint was dismissed. Murchison v. DOJ, 89-0093-PC-ER, 10/4/89
The Commission lacks jurisdiction pursuant to §111.375(2), Stats., over a labor union and, therefore, despite the fact that a discrimination complaint under the Fair Employment Act involved a bargainable subject -- health insurance coverage which falls within the category of fringe benefits -- with respect to which the labor organization had been involved in bargaining, the labor organization cannot be made a party. Phillips v. DETF & DHSS, 87-0128-PC-ER, 3/15/89, 4/28/89, 9/8/89; affirmed by Dane County Circuit Court, Phillips v. Wis. Pers. Comm., 89 CV 5680, 11/8/90; affirmed by Court of Appeals, 167 Wis. 2d 205, 2/13/92
The Medical College of Wisconsin, Inc., is not a state agency for the purpose of processing complaints of discrimination and/or retaliation under the Fair Employment Act. Niroomand-Rad v. Medical College of Wisconsin, Inc., 88-0044-PC-ER, 5/5/88
Complainant's motion to add District Council 24, AFSCME, AFL-CIO as a party to the proceeding was denied as the union is not an agency of the State of Wisconsin acting as an employer. Acharya v. DHSS, 82-PC-ER-53, 5/29/86
The Commission lacks jurisdiction to consider complainant's allegation that the Commission discriminated against the complainant by delaying the investigation of a charge of discrimination, where there was no employment relationship between complainant and the Commission. Poole v. DILHR, 83-0064-PC-ER, 12/6/85
The Department of Military Affairs is not exempt from the Wisconsin Fair Employment Act when making decisions to terminate the employment of military members of the National Guard. Schaeffer v. DMA, 82-PC-ER-30, 11/7/84
Where complainant, as a client of the Division of Vocational Rehabilitation, alleged discrimination on the part of DVR, the Commission concluded that it lacked jurisdiction to review the complaint because DVR may have been acting as an employment agency but not as an employer. The complaint was forwarded to DILHR's Equal Rights Division. Collins v. DHSS, 83-0080-PC-ER, 8/17/83
In assigning a classification to a salary range, the administrator is acting as an "employer" as the term is used in the Fair Employment Act, as he is controlling an aspect of the employes' compensation and is involved in the total employment process, even though complainants were employed in agencies other than the Division of Personnel. WFT v. DP, 79-306-PC, 4/2/82
With respect to a complaint of discrimination against the UW-Press for refusing to publish a manuscript, it was held that the press was not an employer of the complainant. Acharya v. UW, 79-PC-ER-51, 10/1/79
702.03 Employee
It appeared to a reasonable certainty that the Commission was correct in its conclusion that petitioner, a prisoner at the Green Bay Correctional Institution who earned minimum wage and was required to pay taxes while working for the Badger State Industries Private Sector/Prison Industries Enhancement Program, was not an employee as defined by statute. Petitioner alleged his decision to voluntarily terminate his employment with Badger Industries was due to racial discrimination in the work place. The relationship of the petitioner with Badger Industries arose out of his status as an inmate and not an employee. Whaley v. Wis. Pers. Comm., 97 CV 462, Brown County Circuit Court, 5/13/97
Where it was undisputed that complainant’s employment with respondent was terminated effective October 1, 1994, after which he had no relationship with respondent except to use its laboratory resources to search for other employment and to receive references from prior employers, complainant’s allegations of discrimination based on race and/or national origin with respect to comments made by his former supervisor in 1995 were dismissed. Kamath v. UW-Madison, 95-0104-PC-ER, 11/20/97
Inmates performing work in a correctional institution are not considered "employees" within the meaning of the Fair Employment Act, citing Richards v. DHSS, 86-0086-PC-ER, 9/4/86, unless the inmate is employed in an off-site work release program in which their employment has the same attributes as that of non-inmates performing similar work duties. Whaley v. DOC, 96-0157-PC-ER, 3/12/97; reviewed in Whaley v. Wis. Pers. Comm., 97 CV 462, Brown County Circuit Court, 5/13/97
Complainant, an inmate at a correctional institution, was not an "employe" for purposes of the Fair Employment Act with respect to his work as part of the Badger State Industries Private Sector/Prison Industries Enhancement Program, for which complainant qualified as a result of his status as an inmate in the state correctional system. Whaley v. DOC, 96-0157-PC-ER, 3/12/97; reviewed in Whaley v. Wis. Pers. Comm., 97 CV 462, Brown County Circuit Court, 5/13/97
Complainant, who was an inmate and worked for Badger State Industries within a correctional institution was not an "employe" within the meaning of the Fair Employment Act where his work resulted from his status as an inmate in the correctional system and his work did not qualify as a work release program, citing George v. Badger State Industries, 827 F. Supp. 584 (W.D.Wis. 1993) and George v. SC Data Center, Inc., 884 F. Supp 329 (W.D.Wis. 1995). Pinkins v. DOC, 97-0010-PC-ER, 3/12/97
Actions which occurred after the termination of complainant's employment relationship with respondent could not, as a matter of law, constitute "disciplinary action" pursuant to the statutory definition found in §230.80(2)(a), Stats., which refers to "action taken with respect to an employe." Kuri v. UW-Stevens Point, 91-0141-PC-ER, 4/30/93
The Commission lacks jurisdiction over a complaint of discrimination filed by a student at the University of Wisconsin-School of Veterinary Medicine due to the absence of an employment relationship cognizable pursuant to §111.375(2), Stats. Fischer-Guex v. UW-Madison, 92-0205-PC-ER, 12/17/92
Members of the Wisconsin national guard are state employes under the Wisconsin Fair Employment Act, reaffirming the Commission's decision in Schaeffer v. DMA, 82-PC-ER-30, 11/7/84. Aries v. DMA, 90-0149-PC-ER, 11/6/91
A military member of the Wisconsin National Guard is an "employe" of the state and a decision to separate someone from guard service falls within the jurisdiction of the Commission under the FEA. The Commission did not address any question of federal supremacy. Hazelton v. DMA, 88-0179-PC-ER, 3/14/89
Complainant, an inmate in a pre-release work training program, was not in an employment relationship. As part of the program, complainant was paid $0.75 per hour rather than the prevailing wage to perform work at a county mental health center, he received on-site supervision and workers compensation coverage but he did not have access to an employe grievance procedure and was not provided any other benefits. The program agreement covering the complainant specifically provided that the inmates were not to be considered "permanent party employ[es]." Dalton v. DHSS, 87-0168-PC-ER, 9/26/88
While professors involved in a faculty exchange technically remain on the faculties of their respective universities, numerous incidents of the employment relationship are present and to deny status as an "employe" under the act would be inconsistent with the liberal construction policy of the FEA. McFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/8/88
Where complainant's immediate supervisor was within an executive salary group, complainant was not an "employe" under the whistleblower law and was ineligible to file a complaint under that law. Crownhart v. Investment Board, 87-0170-PC-ER, 1/13/88
It could not be said that, as a matter of law, a professor of a South African university would not be considered an employe of the UWWhitewater for FEA purposes if in the status of a visiting professor. McFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/4/86
The Commission lacks subject matter jurisdiction over a complaint filed by an inmate in a Wisconsin prison who alleged discrimination based on conviction record with respect to actions taken by the prison's education director. Complainant contended the actions were contrary to the best interests of the inmates. Richards v. DHSS, 86-0086-PC-ER, 9/4/86
The definition of "employe" in §230.80(3), Stats., should be liberally construed to permit claims arising from an earlier employment relationship even if the alleged retaliation occurred after the complainant has stopped working for the employer. Hollinger v. UW-Milwaukee, 84-0061-PC-ER, 11/21/85; reconsidering 10/29/85 decision
The Commission has jurisdiction over a complaint charging that complainant's status as a military member of the National Guard was terminated because of handicap; military members of the Guard are employes of the States. However, complainant had dual status as a federal civil service technician and as a Guard member and those aspects of the complaint relating to his technician status are outside the Commission's jurisdiction. Schaeffer v. DMA, 82-PC-ER-30, 11/7/84
702.05 Location of employment
The Commission has jurisdiction over a complaint of discrimination with respect to filling a position in the State of Wisconsin budget office within DOA but located in Washington, D.C., where the appointing authority who was responsible for all appointments within the agency, wherever the work, site could be presumed to exercise his authority within the confines of the State. Leverette v. DOA, 82-PC-ER-50, 9/3/82
702.07 Terms, conditions or privileges of employment
Employer actions such as investigations can involve an employe's terms, conditions or privileges of employment, notwithstanding they do not affect the employe's tangible conditions of employment, if they adversely affect the employe's work environment to the extent of creating a hostile environment. Williams v. DOC, 97-0086-PC-ER, 3/24/99
A "last chance" warning to complainant that certain conduct would result in the termination of his employment was not an adverse employment action under the Fair Employment Act. The complaint was based solely on that one action by respondent and complainant failed to show that a reasonable employe similarly situated to complainant would experience the action as a hostile environment. Williams v. DOC, 97-0086-PC-ER, 3/24/99
An allegation that respondent's answer to a complainant "poisoned" complainant's chances to return to work with respondent in a positive atmosphere did not constitute an adverse employment action and could not serve as the basis for a discrimination claim, citing Larsen v. DOC, 91-0063-PC-ER, 7/11/91. Complainant had previously resigned from her position with respondent. Respondent's motion to dismiss for failure to state a claim was granted. Gurrie v. DOJ, 98-0130-PC-ER, 11/4/98
Alleged action by the Department of Employment Relations and the Division of Merit Recruitment and Selection of failing to respond to or act on complainant's letter of complaint relating to conduct by his employing agency, could not have any adverse effect on complainant's employment. Complainant was not employed by either DER or DMRS. Oriedo v. DOC et al., 98-0124-PC-ER, 11/4/98
Action by the complainant’s employing agency to participate in a telephone conference with the Department of Justice and complainant wherein a settlement offer was made to complainant does not arise from the agency’s role as complainant’s employer. Therefore, complainant had no claim under the FEA regarding that action. Balele v. DOA et al., 96-0156-PC-ER, 6/4/97; affirmed by Dane County Circuit Court, Balele v. Wis. Pers. Comm. et al., 97-CV-1927, 2/13/98; affirmed by Court of Appeals, 98-0687, 11/19/98 (unpublished)
The Commission has no jurisdiction to review an employer’s action of implementing garnishment pursuant to a valid court order resulting from litigation in which the employing agency was not a party. Balele v. DOA, et al., 96-0156-PC-ER, 6/4/97; affirmed by Dane County Circuit Court, Balele v. Wis. Pers. Comm. et al., 97-CV-1927, 2/13/98; affirmed by Court of Appeals, 98-0687, 11/19/98 (unpublished)
An employer can take adverse employment action with respect to "terms, conditions or privileges of employment" by an action which affects the tangible conditions of employment –i.e., employment status per se—such as a transfer to a less desirable position or the assignment of less desirable work, or by an action which has an adverse effect on the employe’s work environment—for example, a supervisor calling an employe stupid. In order to be actionable, the actions must be sufficiently opprobrious to create a hostile environment. Klein v. DATCP, 95-0014-PC-ER, 5/21/97
Respondent’s action of requiring complainant to attend a predisciplinary hearing, after which respondent completed its investigation of complainant, concluded that no disciplinary action was warranted and informed complainant of that conclusion, was not an actionable employment action because complainant failed to establish that a reasonable employe similarly situated to complainant would experience the handling of this one predisciplinary process as a hostile work environment. Isolated actions are unlikely to result in a finding of a hostile work environment. Klein v. DATCP, 95-0014-PC-ER, 5/21/97
While a written reprimand and a two day suspension without pay are adverse employment actions, the act of questioning complainant about his use of "snow days" is not, distinguishing Klein v. DATCP, 95-0014-PC-ER, 12/20/95. There was nothing in the record to support complainant’s contention that respondent deliberately tried to provoke him. Marfilius v. UW-Madison, 96-0026-PC-ER, 4/24/97
Complainant made a cognizable claim when she alleged that respondent failed to adequately discipline another employe who had allegedly harassed the complainant, even though complain-ant had, more than 300 days before she filed her complaint of discrimination with the Commission, transferred out of the institution employing the alleged harasser. Schultz v. DOC, 96-0122-PC-ER, 4/2/97
The Commission lacked jurisdiction over a complaint arising from conduct of respondent’s counsel in another case pending before the Commission, where counsel disseminated, to the Commission and to complainant, complainant’s medical records as part of its answer to the complaint. The information was provided as part of the administrative proceeding rather than as part of the ongoing employe/employer relationship between complainant and respondent, citing Larsen v. DOC, 91-0063-PC-ER, 7/11/91, and Martin v. DOC, 94-0103-PC-ER, 12/22/94. Complainant alleged FMLA violation as well as retaliation under the whistleblower law, under the public employe safety and health provisions and for having previously filed a complaint of discrimination. Neither the whistleblower law nor the public employe safety and health provisions is more extensive than the Fair Employment Act as to this issue. Marfilius v. UW-Madison, 96-0047-PC-ER, 5/14/96
Respondent counsel's E-mail response to an inquiry from an attorney in another state bore no relationship to any ongoing employment of complainant by respondent nor to any pending applications for employment. Counsel's response was related to litigation pending in another state and was too removed from a connection with employment to constitute an "adverse action" and respondent's motion to dismiss for failure to state a claim was granted. Huff v. UW System, 96-0013-PC-ER, 5/2/96
An element of a claim of employment discrimination is that the employe have suffered an adverse employment action of some kind. Klein v. DATCP, 95-0014-PC-ER, 12/20/95
While respondent did not formally discipline the complainant, its motion to dismiss for failure to state a claim was denied where complainant was directed to appear at a meeting to discuss a possible work rule violation and the letter directing him to appear could be construed as accusatory or even judgmental and complainant alleged that respondent failed to follow established policies for handling potential disciplinary matters. Klein v. DATCP, 95-0014-PC-ER, 12/20/95
An answer filed by respondent's attorney in a case to which complainant was not a party was not part of the employment relationship existing between respondent and complainant where the conduct did not serve as the basis for imposing discipline against complainant, nor was there a contention that the comments were disseminated by respondent in the workplace setting. The complainant only gained access to the answer by filing an open records request. The claim relating to the answer was dismissed. Martin v. DOC, 94-0103-PC-ER, 12/22/94
An employer's act of asking irrelevant personal questions during a deposition taken in connection with an employe's civil service appeal of a disciplinary action does not fall within "terms, conditions or privileges of employment" and, therefore, is not an adverse employment action prohibited by the FEA. Once the employer and employe become opposing litigants in a statutorily-provided proceeding before a third party agency, the relationship between the parties in the conduct of the litigation is not that of employer and employe. Larsen v. DOC, 91-0063-PC-ER, 7/11/91
A group transportation program (van pool) operated by respondent DOA is a "privilege" of employment for a claimant employed by another state agency. The respondent's motion to dismiss for lack of jurisdiction was denied where the complainant alleged discrimination based on national origin with respect to respondent's decision to terminate complainant's participation in the van pool. Acharya v. DOA, 88-0197-PC-ER, 5/3/89
The Commission lacked subject matter jurisdiction over allegations that the Personnel Commission and DILHR's Equal Rights Division had failed to expeditiously process complainant's previously filed complaints of discrimination in that the allegations did not relate to an actual or prospective employment relationship between the complainant and either respondent. Ozanne v. Pers. Comm. & DILHR, 87-0105, 0108-PC-ER, 12/18/87
A faculty exchange between a Wisconsin university and a foreign university is a "term, condition or privilege" of employment for a professor at a UW campus. McFarland & Joubert v. UW-Whitewater, 85-0167-PC-ER, 86-0026-PC-ER, 9/4/86
The Commission lacks subject matter jurisdiction over a complaint filed by an inmate in a Wisconsin prison who alleged discrimination based on conviction record with respect to actions taken by the prison's education director. Complainant contended the actions were contrary to the best interests of the inmates. Richards v. DHSS, 86-0086-PC-ER, 9/4/86
In light of the rule of liberal construction, the allegations made by complainant that his supervisor had referred to complainant as an "old" employe and an "old bastard" could, if proven, be said to fall within the prohibition against discrimination in conditions of employment. Bratley v. DILHR, 83-0036-PC-ER, 7/21/83
702.10 Age
The Commission lacked jurisdiction under Fair Employment Act protecting individuals from "age discrimination for those between 40 and 65 years of age" over a complaint alleging age discrimination by individual aged 60-2, despite amendment of federal Age Discrimination in Employment Act to protect those up to 70 years of age. Lundeen v. DOA, 79-PC-ER-107, 8/5/81
702.17 Family leave/medical leave
The FMLA requires only that the employee be employed by the same employer for more than 52 consecutive weeks and that the employee worked for the same employer for at least 1,000 hours during the 52 week period preceding the disputed action. It does not require an employee to be employed by the same employer for more than 52 consecutive weeks immediately preceding the disputed action. Butzlaff v. Wis. Pers. Comm., 166 Wis. 2d 1028, (Court of Appeals, 1992)
By reinstating an employe to another position in state service, which included reinstatement of the employe's previous benefits, the state indicated a continuation of benefits and rights including accrued sick leave and eligibility under the family leave/medical leave law. Butzlaff v. Wis. Pers. Comm., Dane County Circuit Court, 90-CV-4043, 4/23/91; affirmed by Court of Appeals, 166 Wis. 2d 1028, 1/28/92
A liberal construction of the "52 consecutive weeks" language of §103.10(2)(c), Stats., is proper where there is not an obvious meaning to this portion of the statute. Therefore, someone has family leave/medical leave eligibility if they have been employed by the same employer for more than 52 consecutive weeks even though subsequent to that period the person had been employed by a different employer. Butzlaff v. Wis. Pers. Comm., Dane County Circuit Court, 90-CV-4043, 4/23/91; affirmed by Court of Appeals, 166 Wis. 2d 1028, 1/28/92
Complainant did not receive continuous treatment or supervision for his back condition where his contacts with a physician consisted of two phone conversations, which were not "direct" and "firsthand," and one visit, which related to an absence 2.5 months earlier, citing Lubitz v. UW, 95-0073-PC-ER, 1/7/98. Preller v. UWHCB, 96-0151-PC-ER, etc., 8/18/98; affirmed Dane County Circuit Court, 98-CV-2387, 12/6/99
In dictum, the Commission concluded that an initial contact which involved a recommendation for self-care and instructions to get a return-to-work clearance prior to returning to work the next day, combined with a return-to-work contact that involved no treatment but simply a recommendation that the employe not lift anything heavy for two to three days with no suggestion for follow-up care or treatment, did not satisfy the requirement for "continuing treatment or supervision" involving "continuous, direct, and firsthand contact" after the initial patient contact. The Commission also cited the testimony of two expert witnesses that complainant's back condition was not a sufficient impairment to be considered disabling pursuant to the FMLA. Preller v. UWHCB, 96-0151-PC-ER, etc., 8/18/98; affirmed Dane County Circuit Court, 98-CV-2387, 12/6/99
The fact that an absence satisfies the requirements for the granting of sick leave under the applicable collective bargaining agreement or other applicable requirements does not mean that the absence is also to be regarded as satisfying the requirements of the FMLA. Such a result would be contrary to the legislative intent expressed in the FMLA that its protections be limited to disabling conditions which require direct treatment by a health care provider over a period of time. Preller v. UWHCB, 96-0151-PC-ER, etc., 8/18/98; affirmed Dane County Circuit Court, 98-CV-2387, 12/6/99
Filing a FMLA request and filing two actions with the Personnel Commission constitute protected activities under the FMLA as well as under the Fair Employment Act. Preller v. UWHCB, 96-0151-PC-ER, etc., 8/18/98; affirmed Dane County Circuit Court, 98-CV-2387, 12/6/99
The fact that complainant grieved the denial of sick leave under the applicable collective bargaining agreement does not deprive the Commission of jurisdiction over a claim filed under the FMLA. The same absence for medical reasons can be both a medical leave under the FMLA and a sick leave under the contract. Janssen v. DOC, 93-0072-PC-ER, 10/20/93
Complainant's FMLA retaliation claim was dismissed where complainant, whose employment was terminated more than one year after she commenced a medical leave of absence, did not make any reference to FMLA in her contacts with respondent and she provided no specific allegations as to how she attempted to enforce a right under the FMLA. Rights to medical leave under the language of the FMLA are not coextensive with rights to medical leave which may exist under the provisions of an employe's collective bargaining agreement. Schmit (Klumpyan) v. DOC, 90-0028-PC-ER, 91-0024-PC-ER, 9/3/92
702.18(1) Generally
Complainant did not establish that she suffered from a mental impairment due to stresses at work, where she continued to be able to perform her job duties, she did not suggest to respondent that she suffered from a handicap, respondent did not perceive her as handicapped and the claimed handicap was not obvious to a lay person. Bentz v. DOC, 95-0080-PC-ER, 3/11/98
Harassment, i.e. a hostile work environment, based on handicap falls within the general prohibition against discrimination in the "terms, conditions or privileges of employment" set forth in §111.322, Stats. Stark v. DILHR, 90-0143-PC-ER, 9/9/94
Complainant's discharge from his employment as a driver's license examiner was in connection with his acting out in the presence of members of the public, certain behavior related to what was diagnosed as an "immature personality disorder in association with a sexual paraphilia," but which was not diagnosed as a psychiatric illness or impairment, but a personality disorder which did not limit his capacity to work. Therefore, he was not a handicapped individual pursuant to §111.32(8), Stats., since his sexual impulses were not uncontrollable and his behavior did not result from an uncontrollable or irresistible urge or impulse. Miller v. DOT, 89-0092-PC-ER, 11/23/93
Complainant's dyslexia was held not to "limit the capacity to work" but to impose "a substantial limitation on a particular life activity" and, as a result, to constitute a handicap. It was held that it did not constitute handicap discrimination per se for the appointing authority not to select complainant even though he was the interview panel's top-ranked candidate; but that it was appropriate for the appointing authority to consider this as one of several selection factors, including the candidates' level and type of education, level and type of experience with the State Patrol, and the goals of the applicable affirmative action plan. It was also held that complainant's argument that, once respondent requested handicapped expanded certification, it was required to hire a handicapped candidate, would lead to an absurd result. Byrne v. DOT & DMRS, 92-0672-PC, 92-0152-PC-ER 9/8/93; affirmed by Dane County Circuit Court, Byrne v. State Pers. Comm., 93-CV-3874, 8/15/94
Complainant, who had a diagnosis of depression, had drugs prescribed for its treatment and was perceived as an alcoholic by someone who played a role in the discharge decision, was handicapped. Bell-Merz v. UW-Whitewater, 90-0138-PC-ER, 3/19/93
Complainant, who had incurred injuries in an auto accident, which involved a whiplash injury resulting in headaches, neck pain, numbness in both arms and hands, slight back pain, and pain between her shoulder blades, did not satisfy the definition of a "handicapped individual," §111.32(8), Stats., since complainant's injuries caused her to make only minor changes in her work and life activities and did not render achievement unusually difficult or limit in any significant way her capacity to work. The record also does not reflect that respondent perceived complainant as handicapped. Assuming arguendo the existence of a handicap, complainant failed to establish that the reasons given by respondent for her probationary termination were a pretext for handicap discrimination. Renz v. DHSS, 88-0162-PC-ER, 12/17/92
Complainant was handicapped where his intellectual abilities were below average and resulted in unusual difficulties for complainant in passing his high school courses, in passing an examination to obtain a driver's license or any other written examination, in learning to balance his checkbook, in following verbal instructions, in adapting to changes, and in planning or exercising independent judgment. Jacobus v. UW-Madison, 88-0159-PC-ER, 3/19/92; affirmed by Dane County Circuit Court, Jacobus v. Wis. Pers. Comm., 92CV1677, 1/11/93
Complainant in a nonselection case was not handicapped where he failed to provide any medical evidence that his "speech problem" was a handicapping condition and the interview panelists testified they did not perceive him as handicapped. Jahnke v. DHSS, 89-0094-PC-ER, 89-0098-PC, 12/13/90
Complainant was not handicapped in terms of a hearing condition where no medical evidence was presented that the condition constituted a handicap and the complainant merely testified that his physician had determined he had normal hearing in speech frequencies in one ear and a slight loss in the other ear but not to the level of disability in terms of communicating with others. There was no evidence the complainant's supervisors had been advised that complainant had a handicapping hearing condition until the complainant mentioned it at his termination meeting, although some of complainant's co-workers testified they believed complainant had difficulty hearing. Parrish v. DHSS, 87-0098-PC-ER, 10/23/90
Complainant was not handicapped in terms of an elbow condition where a physical exam five months after the termination of complainant's employment listed his arms as "okay" and where seven employes, including two of complainant's witnesses and his two supervisors, all testified they were unaware complainant had any problems with his arms, even though 6 months before his termination, complainant had been given an injection of cortisone and placed on anti-inflammatory medication for tenderness in his left elbow and 4 years earlier he had recurring pain in his right arm. Parrish v. DHSS, 87-0098-PC-ER, 10/23/90
A mild form of cerebral palsy which limited the dexterity of the complainant's right hand and foot and which had an effect on her vision and speech and a severe case of sleep apnea which caused daytime drowsiness and depression constituted impairments within the meaning of the Fair Employment Act and limited the complainant's ability to perform the physical aspects of her position. Complainant was found to be handicapped under the law. Tews v. PSC, 89-0150-PC, 89-0141-PC-ER, 6/29/90
While an employe's exclusive remedy for the failure to rehire, where the employe has suffered a compensable injury, is under the Worker's Compensation law, exclusivity comes into play only when the refusal to rehire has a causal relationship to the work-related injury. An employe who suffers a work-related injury and subsequently is denied rehiring because of national origin would not be precluded from pursuing a charge of discrimination based on national origin. Also, if the employer found out that same the employe also had an arm condition and refused to rehire on that basis, the employe would not be precluded from pursuing a claim of handicap discrimination with respect to the failure to rehire because of the arm condition. If the employe established that the arm condition played a role in the decision not to rehire, the employer would have to prove by a preponderance of the evidence that it would have reached the same decision relative to non-reappointment even if the arm condition would not have figured into the decision. Elmer v. UW-Madison, 88-0184-PC-ER, 8/24/89
Respondent's motion to dismiss for failure to state a claim was granted where 1) at the time complainant applied for a warden position, respondent had a visual acuity standard for initial hiring, 2) complainant's visual acuity did not meet the standard, 3) complainant did not score high enough on the civil service exam to be certified under the standard certification process but was, because of his vision limitation, certified under handicapped expanded certification, 4) respondent informed the complainant he would not be considered further due to the failure to meet the vision standard, 5) complainant filed a complaint of discrimination and 6) respondent then deleted the vision requirement. Complainant still could not be considered after the vision requirement was deleted because he was no longer eligible for handicapped expanded certification and had not scored high enough on the exam to be considered without expanded certification. The Commission rejected the complainant's argument that the deletion of the vision standard constituted "retroactive law." The Commission retained jurisdiction for 30 days to permit complainant to amend his complaint. Wood v. DNR, 88-0019-PC-ER, 5/18/89
The Commission has jurisdiction over a claim alleging "reverse discrimination" on the basis of handicap with respect to the use of handicapped expanded certification. The FEA prohibition against handicap discrimination is not restricted to situations involving adverse employment actions against an individual because of that individual's handicap. Oestreich v. DHSS, 87-0038-PC-ER, 6/29/88
Complainant established that his bronchial asthma was a handicapping condition for purposes of a probable cause determination where complainant testified he suffered from asthma that he received a disability payment based in part on being asthmatic and that he had been prescribed specific medications for treatment of asthma and where the examining physician noted on complainant's pre-employment physical exam report: "bronchial asthma -- well controlled with medication." Testimony of a physician was not required. Hebert v. DHSS, 84-0233-PC, 84-0193-PC-ER, 10/1/86
Respondent's motion to dismiss the discrimination complaint based on an argument that complainant was not a "handicapped individual" was denied where at the time respondent issued complainant a probationary termination letter, complainant's physician had indicated that complainant should not work for seven days due to a dermatitis condition that had existed in the previous two months and that he should be given work that avoided contact with known irritants. Humphrey v. UW-Madison, 84-0040-PC-ER, 7/12/85
Alcoholism is a handicap within the meaning of the Wisconsin Fair Employment Act. Burton v. DNR, 82-PC-ER-36, 8/31/83
702.18(2) Temporary disability
A temporary disability may constitute a handicap pursuant to §111.32(5)(f), Stats. Goldberg v. DP, 78-PC-ER-66, 74, 10/17/80
While this digest has been prepared by Personnel Commission staff for the convenience of interested persons, it should be remembered that the decisions themselves are the ultimate source of Commission precedent.